Beer merger would worsen existing duopoly by AB InBev, SABMiller

Ah, yes, Super Bowl weekend. Football on the wide screen. Homemade chili simmering on the stove. And, of course, cold beer in the fridge.

Walk into almost any supermarket or liquor store these days and you’ll find an abundant assortment of beer — the big domestic brands, along with imports from every corner of the globe and craft brands that are proliferating at the rate of one per day. In terms of quality and choice, this looks to be the golden age of beer drinking in America.

But beneath this bewildering variety lurks a very different market reality. An emerging duopoly has come to dominate the brewing, marketing and distribution of beer no less than Coke and Pepsi have done for soft drinks.

Once threatened by upscale imports and upstart craft brews, duopolists Anheuser-Busch InBev and SABMiller now seek to turn variety to their advantage. And while they compete with Super Bowl-like ferocity to create products with the best taste, the most interesting packaging and most alluring brand image, like all successful duopolists they take care not to compete too fiercely on price.

So it is not without significance that last week, after years of acquiescence to the beer industry’s relentless consolidation, government antitrust officials decided enough was enough. On Thursday, the Justice Department went into federal court to block AB InBev, the world’s and the country’s largest brewer and marketer, from buying Mexico’s Grupo Modelo, a rival that has risen quickly to the No. 3 position in the United States on the strength of its Corona brand.

Measured by volume, the combined company (Budweiser, Beck’s, Stella Artois, Leffe, Bass and Lowenbrau, plus Corona) would control more than 50 percent of the U.S. market. That would be nearly double the market share of rival SABMiller (Miller, Coors, Pilsner Urquell, Peroni, Grolsch, Foster’s and Milwaukee’s Best) and eliminate any latent threat to the current duopoly.

Anheuser-Busch InBev (ABI) must now decide whether to fight the government in court or walk away from the deal and pay Modelo a hefty $650 million breakup fee.

Then there were two

The extreme concentration in the beer market is a relatively recent development. In 1980, there were 48 major U.S. brewers, according to an enlightening report issued last year by the New America Foundation. But all that began to change in the 1990s, as the remaining local and regional brands found they could not compete with larger rivals that benefited from the economies of scale and mounted well-funded national advertising campaigns.

Global consolidation began quietly in 1987 when two of Belgium’s top brewers formed Interbrew and spent the next 15 years buying up other national champions. In 1999, Interbrew joined with two of Brazil’s largest brewers to form AmBev.

Meanwhile, South African Breweries (SAB) embarked on a similar shopping spree, picking up brewers in Eastern Europe, Russia, India and China. In 2002, SAB landed on American shores with the purchase of No. 2 Miller, followed a few years later with Coors and Molson of Canada. AmBev waited until 2008 to launch its U.S. entry with its $52 billion deal to acquire No. 1 Anheuser-Busch. Both transactions won easy approval from the Bush administration, which rarely encountered a merger it didn’t judge to be pro-competitive.

Suddenly, instead of 48 major brewers operating in the United States, there were two — albeit two offering consumers dozens of competing brands. Together, they accounted for nearly 80 percent of U.S. beer sales, as measured by volume. Imported Heineken (Amstel, Dos Equis) held a steady 4 percent of the market, while Pabst (which no longer brews its own beer but contracts with SABMiller to make its Schlitz, Stroh and Lone Star brands) clings to a 3 percent share.

And as for those 2,000-plus independent craft brewers, they account for less than 6 percent of the market, with nearly half of that coming from just two brewers, Yuengling and Sam Adams.

Which brings us to Modelo, whose Corona and other Mexican imports now claim about 6 percent of the U.S. market. In recent years, Corona has been in a head-to-head battle with AB InBev’s Bud Light for the affections of American consumers — in particular, women and Hispanics. ABI responded to the cross-border challenge by introducing Bud Light Lime, a not-too-subtle echo of the lime wedge that bars stuff into the neck of each bottle of Corona. Corona fought back with Corona Light.

Corona vs. Bud Light

What few people outside the industry realized was that, back in 1993, Anheuser-Busch had bought a non-controlling 50 percent stake in Grupo Modelo and through it a 25 percent stake in Crown Imports, the exclusive U.S. importer of Corona.

In other words, Bud’s parent, ABI, profited every time a bottle of Corona was sold in the United States. For ABI executives, however, this proved insufficient solace. They were more concerned with the way Corona had gained its market share — by refusing to follow ABI’s lead in raising industry prices and profits.

Since 2008, ABI’s hard-nosed chief executive, Carlos Brito, has made no secret of his aim to end the price wars that for years depressed profits in the U.S. beer industry. Price competition was inevitable as long as there were lots of brewers with excess capacity competing for market share. But Brito’s strategy was that consolidation would eliminate the excess capacity and make it possible for the handful of remaining firms to reach a tacit agreement not to compete on the basis of price.

Inside ABI, the strategy was known as its “Conduct Plan,” which the Justice Department, in its suit, characterized as a “how-to manual for successful price coordination.” Each August, ABI would announce its intention to raise prices in October and then wait to see how rivals would respond. As Brito had hoped, SABMiller announced a similar increase. A recent report by the American Antitrust Institute found that since 2008, despite a recession and a modest decrease in the amount of beer it sold, America’s beer duopolists have increased prices, operating profits and share prices.

Brito’s strategy might have worked even better if Modelo had played along. Instead, Modelo used the price increases to narrow the gap between its more expensive Corona and its domestic competitors. In California, ABI’s losses in market share were so great that its vice president for sales wrote in a memo that “California is a burning platform,” according to the Justice Department’s suit. In Texas and New York City, the loss in sales was so great that ABI was forced to roll back its price increase, the government says.

By 2011, price competition from Modelo also forced ABI executives to cobble together a plan for developing its own “Corona-killing” brands. One idea, according to internal memos, was for ABI to acquire the U.S. sales rights to Presidente, the best-selling beer in Central America. Another was to acquire a small craft brewery in Mexico or the southwestern United States.

These internal deliberations seriously undermined ABI’s claim that its purchase of the rest of Modelo would in no way hurt competition in the U.S. beer market. If ABI were to gain control over Corona’s sales and marketing effort, it is inconceivable that Modelo would not shift course and align itself with ABI’s pricing strategy. And it surely wouldn’t go to the expense of having Budweiser launch new “Mexican” brands to compete with Corona.

The facade of competition

Indeed, what ABI would have achieved with Modelo is the market nirvana that corporate executives have dreamed about forever — the appearance of competition without any real competition.

ABI and its lawyers naturally reject this characterization of the Modelo acquisition. They argue that what really matters for American consumers isn’t the competition between the brewers in the United States, since Modelo doesn’t actually brew anything here. Rather, what matters is the competition between ABI and Crown Imports, which would retain the exclusive right to market and price Corona in the U.S. market.

Moreover, to ensure the vibrancy of that competition, ABI had agreed to sell Modelo’s stake in Crown to its partner, New York-based Constellation Brands, better known as one of the country’s leading wine importers and distributors. The theory was that an independent Constellation would have plenty of incentive to maximize its profit by maximizing Corona’s sales and profits.

Or maybe not. After all, without its own brewery, Constellation would still rely on ABI, its competitor, for its beer. And how could it be sure it could obtain all the beer it needed at a competitive price?

Not to worry, said ABI, pointing to a lengthy supply agreement that, for the next decade, was said to guarantee Constellation a percentage of its brewery output at a price that will rise only with inflation. After that, the contract could be renewed or renegotiated to the satisfaction of both parties, or ABI could buy up Constellation’s interest for a hefty premium.

These are the sort of “remedies” to anti-competitive mergers that corporate lawyers routinely concoct to satisfy the objections of antitrust regulators. As a general rule, you can assume that they’ve been carefully constructed with clever loopholes and hidden trapdoors so that, five years down the road when everyone is looking the other way, the merged company will be able to engage in precisely the behavior these agreements are meant to prevent.

As it happens, William Baer, the new chief of the Justice Department’s antitrust division, has long been a skeptic of such supply agreements as antitrust remedies. And in this case, his skepticism was justified. For what he and his investigators discovered was that there had been a heated debate for years between Constellation and Modelo over how to price Corona in the U.S. market, with Modelo pushing to increase market share through lower prices and Constellation pushing to follow ABI’s price leadership.

Internal memos also revealed that while Modelo’s primary interest appeared to be to grow its U.S. market share through long-term brand and product development, Constellation’s focus was on maximizing short-term profit. The dispute became so heated that Modelo filed suit against Constellation for a breach of its fiduciary duty. A merger would finally settle that dispute by leaving the more ABI-friendly Constellation in charge.

Moreover, as a key supplier, ABI would have countless opportunities to reward Constellation for following ABI’s lead — and punishing it when it did not, just as it has done for years in disciplining its “independent” distributors. Under state franchise laws, it is nearly impossible for a brewer to terminate a contract giving a distributor the exclusive right to sell a beer in a given geographic area. But over the years, ABI has become very adept at using carrots and sticks to get distributors to toe the line.

According to industry executives I spoke with, Anheuser-Busch routinely provides its distributors with suggested wholesale and retail prices. Those who follow find themselves with lower prices for their beer and extra marketing money with which to sell it. Those who don’t might find themselves at the receiving end of late shipments of smaller allotments of hot products.

ABI also is well-known for discouraging them from selling any craft brands that compete with ABI products, which given its wide portfolio of brands covers just about every segment of the market.

In Ohio, for example, ABI distributors who agreed to help Yuengling expand into that state were recently criticized at a national sales meeting for being “disloyal,” a Yuengling executive told me, while others were treated to repeated visits from ABI inspection teams who filed long lists of alleged violations of the distribution agreement.

In late 2011, ABI provided its distributors with a glossy four-color “Wholesaler Family Consolidation Guide,” in which it declared its aim to further reduce the number of distributors through “voluntary” mergers. ABI vowed to designate a limited number of “anchor distributors” that it wanted to do the buying. They would receive financing and other assistance from ABI. All the rest were expected to sell out, and ABI warned that it would exercise its rights under the distribution contract to prevent them from selling to anyone other than an “anchor distributor,” even if others were willing to pay more.

Among the criteria for selecting “anchor” distributors: alignment with ABI’s pricing strategy, refusal to carry competing products and support of ABI positions on legislative issues.

Over the past decade, there had already been significant consolidation among beer distributors. While this reflects the competitive push to achieve economies of scale, it has also been driven by the major brewers for more “alignment” in their distribution networks — having one distributor in each territory for all of their brands. As a result, the distribution market has also become an effective duopoly, with one ABI and one Miller distributor in each territory, together accounting for well over 90 percent of sales in many markets.

For importers and craft brewers, the only choice is to hitch a ride on one of the two trucks or sign up with one of a dwindling number of independents who have no access to convenience stores or chain retailers. Most independents also don’t have the salesmen or trucks to call on the full range of restaurants, bars and liquor stores. Going with an independent distributor effectively ensures that a small brewer will remain small forever.

It’s all about shelf space

It’s something of a mystery why the Justice Department has allowed such a powerful duopoly to develop both among brewers and distributors. But its anti-competitive effect is magnified by the fact that big retailers are now contracting with one distributor to serve as “category captains,” with the responsibility to manage their shelves, select point-of-sale marketing and, in some cases, even set retail prices. Under these arrangements, a lucky distributor is responsible not only for managing the sale of its own beer in each store but also the beer of its competitors.

“When I walk into a store, I can tell within 30 seconds whether the category captain is Bud or Miller,” one craft brewer told me. The captains put their own products in the prime positions at eye level at the ends of the aisles, many with point-of-sale displays. Typically, craft brews marketed by other distributors are relegated to top and bottom shelves in the back aisles.

How much does placement matter? Because beer is an impulse purchase, brewers say shelf placement can swing the sales volume in any store by up to 50 percent.

All of which explains why craft brewers, in particular, have quietly opposed ABI’s acquisition of Corona. They fear that giving ABI any more market clout will only strengthen its hold on distributors and put competitive pressure on SAB to do the same. The result they fear is that all but the strongest craft brands will be marginalized or thrown off the delivery trucks.

“You’re damned right I feel threatened right now” by ABI, said Jim Lutz, president of Delaware-based Old Dominion Brewing. “And I can assure you I’m not alone.”

It’s also not lost on the craft brewers that, through the purchase of key wholesalers in 17 states, ABI itself is already the country’s largest distributor, handling at least 10 percent of its nationwide sales. ABI’s goal is to raise that to 50 percent.

The real question raised by ABI’s acquisition of Corona isn’t so much whether the deal would reduce competition in the U.S. beer market — it’s how such concentration was allowed to develop in the first place.

With the help of category captains, that duopoly now extends from the brewers right down to liquor store shelves and barroom taps. And if it is allowed to strengthen, it will not only dampen any serious price competition but gradually chip away at what Barry Lynn of the New America Foundation calls the “riotous jungle” of craft beers now on offer to urban consumers.

For the American beer industry, it seems, every weekend is Super Bowl weekend — it’s just that it’s always the same two teams on the field.